Opinion
DOCKET NO. A-4972-14T1
12-22-2016
A.R., Plaintiff-Respondent, v. D.R., Defendant-Appellant.
Amy F. Gjelsvik argued the cause for appellant (Paris P. Eliades Law Firm, LLC, attorneys; Ms. Gjelsvik and Adrianna Altamirano, on the brief). Alix Claps argued the cause for respondent (Heymann & Fletcher, attorneys; Sandra N. Lomenzo, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Yannotti and Fasciale. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-0452-15. Amy F. Gjelsvik argued the cause for appellant (Paris P. Eliades Law Firm, LLC, attorneys; Ms. Gjelsvik and Adrianna Altamirano, on the brief). Alix Claps argued the cause for respondent (Heymann & Fletcher, attorneys; Sandra N. Lomenzo, on the brief). PER CURIAM
Defendant appeals from an order of the Family Part dated May 28, 2015, which denied his motion to vacate a final restraining order (FRO) entered by the court pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35, and awarded plaintiff attorney's fees. We reverse.
We briefly summarize the relevant facts and procedural history. The parties were married in December 1987, and four children were born of the marriage. Their marital home is located in Chester Township, Morris County. Plaintiff is employed by a community college, and defendant owns and operates a heating, ventilating, and air conditioning company. Defendant suffers from dyslexia, which he claims impairs his ability to comprehend the written word. In August 2014, plaintiff filed a complaint for divorce; however, the parties continued to live together with their children in the residence in Chester.
On November 2, 2014, the parties got into an argument. According to plaintiff, the parties argued over finances and the terms of the divorce. The confrontation allegedly became physical. Defendant allegedly jumped on top of plaintiff, held her down, and covered her mouth with his hand. Defendant allegedly struck plaintiff in the eye, which apparently caused visible injuries to her left eye and cheek. The following day, the parties again argued.
Later that evening, plaintiff sought a temporary restraining order (TRO). At 9:10 p.m., on November 3, 2014, the TRO was granted. Among other provisions, the TRO barred defendant from the marital residence and plaintiff's place of employment; prohibited him from having any contact or communication with plaintiff; and prohibited defendant from stalking, following, or threating to harm plaintiff. Plaintiff was given temporary possession of the marital home, and the parties were ordered to appear in court for a final hearing at 8:30 a.m. on November 5, 2014.
At around 12:30 a.m. on November 4, 2014, defendant arrived home from work. Police officers were waiting for him. Defendant cooperated with the officers and accompanied them to the police station. He was provided with a copy of the TRO, but he refused to sign his name to the section of the TRO acknowledging receipt of a copy of the TRO.
Defendant did not appear in court for the hearing on the FRO, and the hearing proceeded in his absence. Plaintiff testified that defendant's behavior had become increasingly violent and threatening. Plaintiff detailed acts of domestic violence she said defendant had committed. Plaintiff asked the judge to enter a FRO to protect her from further acts of domestic violence by defendant.
In response to the judge's questions, plaintiff stated that she wanted the judge to maintain the present status quo of support. She indicated that each month, defendant deposited $7000 into the family's account for the payment of bills. Plaintiff stated that if defendant wanted her to pay the bills, he would have to deposit the monies into her account.
The judge then placed his decision on the record. The judge stated that he was convinced, based upon a preponderance of the evidence, that defendant had committed acts of domestic violence, as defined in N.J.S.A. 2C:25-19(a), specifically assault under N.J.S.A. 2C:12-1, and harassment pursuant to N.J.S.A. 2C:33-4. The judge found that it was clear that there was "a very serious potential of future domestic violence," and plaintiff required a FRO for her protection.
The judge determined that the parties could communicate with text messages regarding the children, but he would prohibit defendant from having telephone conversations with plaintiff. The judge also said he would order defendant to pay plaintiff $7000 per month by depositing that amount into plaintiff's checking account for household expenses. The judge noted that the support order would be without prejudice to further orders by the court in the matrimonial action.
The judge memorialized his decision in a FRO dated November 5, 2014. The order stated that defendant had been served with the TRO and failed to appear for the hearing on the FRO. The order noted that default had been entered against defendant; defendant had committed acts of domestic violence, specifically assault and harassment; the parties could communicate by text messages solely with regard to the children; and defendant would arrange for parenting time directly with the children.
Plaintiff was awarded temporary possession of the martial home. Defendant was prohibited from committing further acts of domestic violence, barred from the marital home, and prohibited from possessing weapons. The order further provided that defendant would deposit $7000 into plaintiff's bank account each month to maintain the status quo. In addition, defendant was ordered to pay a civil penalty of $50, and participate in an intervention program for batterers.
On March 17, 2014, defendant filed a motion in the trial court to vacate the FRO. In support of that motion, defendant submitted a certification stating that he had no criminal history. He said he has struggled with dyslexia for his entire life, which causes him to experience "significant short term memory problems." Defendant stated that he frequently is unable to remember important appointments.
Defendant conceded that on November 2, 2014, he and plaintiff got into a heated argument. According to defendant, plaintiff became angry because he would not agree to her financial demands. Defendant stated that the more he refused plaintiff's demands, the more "confrontational and antagonistic" she became.
Defendant insisted that he did not strike plaintiff during the argument. He admitted, however, that he put his hand over plaintiff's mouth and told her to stop yelling at him because he did not want the children to hear them fighting over the divorce. After the argument, the parties went to sleep in separate rooms, as they had done for some time before the incident.
Defendant also said that his working hours are "very long" and he frequently works twelve to fourteen hours per day. He stated that on November 3, 2014, he went to job sites in Denville and Jersey City. He worked that day until about 11:00 p.m. He did not know plaintiff had gone to the municipal court to seek the TRO. He returned home at approximately 12:30 a.m. on November 4, 2014. Police officers were waiting for him.
Defendant went with the officers to the police station, where he remained until 2:30 a.m. Defendant then went to the marital home to retrieve his car, and thereafter to a job site in Long Valley, where he spent the rest of the night. He worked later that day until 9:00 p.m. Defendant said that after work, he went to a hotel to spend the night. Defendant claimed he "passed out from exhaustion."
Defendant stated that on the morning of November 5, 2014, he woke up "groggy and late for work." He "rushed" to a job site in Bergen County and did what was necessary to get his workers started. At around 11:00 a.m., defendant took time to read the TRO in detail. He read the TRO several times and finally understood the section of the TRO which stated that he had to be in court at 8:30 a.m. that morning.
Defendant asserted that he was "shocked" to see that he had been required to appear in court for the hearing on the FRO less than thirty-six hours after the TRO had been issued. He went immediately to the court and spoke with a clerk. Defendant asserted that the court erred by conducting the hearing in his absence, and by entering the FRO based solely on plaintiff's representations.
Defendant also said the court erred by ordering him to pay $7000 per month in support. Defendant stated that the court erroneously relied on plaintiff's statements, and failed to inquire as to her income, which he said was at least $72,000 per year.
In addition, defendant stated that plaintiff's actions since the FRO was entered indicated that she had no fear of him. He insisted that there was no need for a FRO. He claimed plaintiff was using the FRO as "leverage" against him, and she actively enticed him into violating the FRO. Defendant asked the court to award him attorney's fees.
Plaintiff opposed defendant's motion and filed a cross-motion seeking the award of attorney's fees. In her supporting certification, plaintiff repeated the allegations of domestic violence, which caused visible bruising and injuries to her eye. She claimed she had been in great physical pain. Plaintiff asserted that defendant's demand for relief was without merit, and he was using the judicial system to harass her. She said it would be unfair if the court set aside the FRO when defendant could not find the time to read the TRO until more than two days after it was issued.
Plaintiff asserted that defendant claimed he had dyslexia and memory loss, but he had not submitted any proof of the same. She stated that defendant had "snubbed his nose" at the court, and defendant was trying to "back-pedal" and "make excuses for being flippant and defiant." Plaintiff said defendant was lying when he said he did not understand the TRO. Plaintiff also asked the court to deny defendant's motion to vacate the support amount ordered by the court. She stated that defendant earns about $10,700 each month plus bonuses, and he can afford to pay $7000 per month for support.
The judge considered the motion on May 18, 2015, and placed his decision on the record. The judge noted that defendant had been provided with a copy of the TRO and defendant was "thrown out" of his house. The judge said that defendant has financial resources, but did not contact any attorney to seek legal advice.
The judge stated that defendant knew he had dyslexia, and when he was served with papers, there was "all the more reason to contact someone" to read the TRO and explain it to him. The judge commented that, instead of seeking legal advice or some assistance, defendant went to work on the day the hearing on the FRO was scheduled.
The judge observed that the evidence presented at the hearing was "pretty strong" and although defendant disputed that he injured plaintiff, there was "some indication" that defendant "put his hands on" plaintiff. The judge said the TRO "forms are somewhat difficult" and the hearing was scheduled shortly after the TRO was issued, but it is "supposed to be done expeditiously."
The judge found that plaintiff would be harmed if she had to go through another hearing. The judge concluded that defendant had not made a good faith showing sufficient to warrant vacation of the FRO. The judge also found that defendant should be required to pay plaintiff's counsel fees for responding to the motion. The judge memorialized his decision in an amended FRO dated May 28, 2015. This appeal followed.
On appeal, defendant argues that the trial court erred by: (1) failing to vacate the default FRO pursuant to Rule 4:50-1(a) or (f); (2) refusing to vacate the FRO in light of the severity of the its consequences; (3) affording "excess weight" to plaintiff's inconvenience in ruling on the motion to vacate the FRO; (4) failing to adequately evaluate the $7000 support obligation the court had imposed; and (5) failing to conduct a plenary hearing on the motion. Defendant further argues that the TRO form is unconstitutional because it does not provide reasonable notice of the scheduled court hearing on the FRO.
We note initially that a trial court's determination granting or denying relief under Rule 4:50-1 is entitled to substantial deference and will not be reversed in the absence of a clear abuse of discretion. U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). To warrant reversal of the court's Rule 4:50-1 order, a party must show that the decision was "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Id. at 467-68 (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).
As noted, defendant argues that the trial court erred by failing to vacate the FRO pursuant to Rule 4:50-1(a). Subsection (a) allows the court to grant relief from a judgment on the basis of "mistake, inadvertence, surprise, or excusable neglect[.]" R. 4:50-1(a). Here, the FRO was entered by default.
It is well established that a default judgment will not be set aside unless the defendant's failure to answer or appear was excusable under the circumstances, and the defendant has shown a meritorious defense. Guillaume, supra, 209 N.J. at 468-69; Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div.), aff'd, 43 N.J. 508 (1964). A court may find "excusable neglect" if the "default was 'attributable to an honest mistake that is compatible with due diligence or reasonable prudence.'" Guillaume, supra, 209 N.J. at 468 (quoting Mancini v. EDS, 132 N.J. 330, 335 (1993)).
Here, the judge mistakenly exercised his discretion by denying defendant's motion to vacate the FRO. Defendant showed excusable neglect for his failure to appear at the hearing on the FRO. He established that, although he is a business owner, he has dyslexia which affects his ability to read and understand written materials.
Defendant acknowledged that he was served with the TRO, but that occurred sometime after midnight on November 4, 2014. The order stated that the hearing on the FRO was scheduled for 8:30 a.m. on November 5, 2014, but that information was set forth on the fourth page of the order. Defendant asserts that he did not read that part of the order, and he did not realize that the hearing was scheduled so soon after the TRO had been issued.
We are convinced that, under the circumstances, defendant's failure to appear at the hearing on the FRO was excusable. Defendant was not aware that the hearing had been scheduled on the morning of the day following his receipt of the TRO, and his failure to realize that the hearing was scheduled for November 5, 2014, is understandable in view of the expeditious scheduling of the hearing, defendant's problem with dyslexia, his removal from the marital home, and his business responsibilities.
We are also convinced that defendant established a potentially meritorious defense to the claim that he committed an act of domestic violence. As noted, defendant has denied plaintiff's allegations of physical abuse. He acknowledged that the parties had argued over the divorce, but denied that he struck plaintiff during the argument. He admitted that he put his hand over plaintiff's mouth, but explained that he did so to stop her from yelling so that the children would not hear the argument.
The judge noted that there was some indication that defendant had put his hands on plaintiff. The court may ultimately determine that defendant committed an act of domestic violence. However, that determination should be made after the court has heard the testimony of both parties and made the necessary credibility findings.
Defendant also presented a potentially meritorious defense as to whether a final FRO should be issued. In addition to determining whether defendant committed an act of domestic violence, the court must determine whether a FRO is necessary to protect plaintiff from further acts of domestic abuse. Silver v. Silver, 387 N.J. Super. 112, 128 (App. Div. 2006). Here, defendant asserts that plaintiff's conduct indicates that she has no reason to fear him. If the court accepts defendant's testimony, the court may determine that a FRO need not be issued.
In addition, defendant disputes the court's order which required him to pay $7000 per month in support pending further order of the court in the parties' matrimonial action. Defendant asserts that, in granting this relief, the trial court did not have evidence regarding his income and expenses, and relied solely upon plaintiff's assertion that defendant could afford to pay $7000 per month in support. Based on a more complete record, the trial court may reach a different conclusion.
We therefore reverse the FRO and remand the matter to the trial court for a plenary hearing on whether defendant committed an act of domestic violence, whether a FRO should be entered, and whether to award monetary relief. Until the trial court holds the hearing and issues a final decision on the matter, the TRO shall remain in full force and effect.
In addition, we note that the trial court awarded plaintiff's attorney's fees for opposing defendant's motion to vacate the FRO. On remand, the trial court should reconsider that decision.
The court also should consider whether to impose conditions for setting aside the FRO, including an award of attorney's fees incurred by plaintiff for the previously-held hearing on the FRO and for this appeal. See ATFH Real Prop., LLC v. Winberry Realty P'ship, 417 N.J. Super. 518, 527-28 (App. Div. 2010) (holding that a trial court may impose terms, including the award of attorney's fees, for setting aside a default judgment), certif. denied, 208 N.J. 337 (2011).
In view of our decision, we need not address the other issues raised by defendant.
Reversed and remanded to the trial court for further proceedings in accordance with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION